The U.S. Court of Appeals for the D.C. Circuit says Obama did not have the power to make recess appointments last year to the National Labor Relations Board.

Obama claims he acted properly because the Senate was away for the holidays. But the court says the Senate technically stayed in session when lawmakers gaveled in and out every few days for so-called “pro forma” sessions.

GOP lawmakers used the tactic specifically to prevent Obama from using his recess power to fill vacancies in an agency they claimed was too pro-union.

The Obama administration is expected to appeal the decision to the Supreme Court.

The only worry is if Chief Justice Roberts finds some way to label the appointments “a tax.”

Stephen Green began blogging at VodkaPundit.com in early 2002, and has served as PJMedia's Denver editor since 2008. He's one of the hosts on PJTV, and one-third of PJTV's Trifecta team with Scott Ott and Bill Whittle. Steve lives with his wife and sons in the hills and woods of Monument, Colorado, where he enjoys the occasional lovely adult beverage.

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1.
Still Waters

If Johnny Boy Roberts can’t fix the ticket for President You Didn’t Build That, I don’t know who could. He’s said to keep a special pair of heavy duty knee pads beside his constitutional coloring book and pretty big box of 36 crayons at work, as well as a spare pair at home in case the Dearest Leader and Guiding Light of the U.S.S.A. and Protector of the Holy Cities of Honolulu, Chicago, and Washington, D.C., ever decides to waste time visiting him.

another shining example of the O just not giving a crap about law or other people’s money – take it to court, knowing full well it was unconstitutional, spend a few bucks on fighting it, then take it to court again, spend a few more bucks to appeal, find a judge somewhere greased enough to overturn it. We thought at one time that keeping the O busy like this would keep his fingers out of the important stuff, but guess we were wrong, huh?

So what happens to all the NLRB decisions made since the unconstitutional appointments? Without the appointments they didn’t have a quorum. And what about the recess appointment of Cordray to the CFPB made at the same time? But in reality I guess “What difference does it make?”

Jay Sekulow, one of the attorney’s who argued this case, says that unless overturned this ruling says all actions taken by the NLRB since the appointments of Obama’s people are VOID. Supposedly this will hold for the Consumer Protection Board too — making the implementation of Dodd/Frank impossible. HUGE!

A terrific attorney (who shall be nameless) points out to me that although the ruling is correct, it went too far — the Senate decides when it is in session. As a practical matter, whenever the Senate is controled by the opposing party, or when it simply wants to uphold its prerogitves on appointments, it can simply declare itself to be in pro forma session when it is not actually conducting solid business and thereby deny an administration the opportunity to make recess appointments.

The “O” probably thought that “recess” meant playing outside on the Senate playground. When he saw that the jungle gym and swingeset were empty, he must have thought that the Senate wasn’t taking recess that day, so he signed some papers with his magic crayon.
Sure, I’m belittleing the situation, but that doesn’t sound half as stupid as the arguments that the administration’s attorneys tried on the US Court of Appeals. The president gets to decide when the Senate is in recess? So does he also set their bathroom schedule?
If you to appoint someone, march them up to the Senate for a confirmation hearing. That process has worked for only about 200 years.